01982332
03-12-1999
Michael Nghiem, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Michael Nghiem, )
Appellant, )
)
v. ) Appeal No. 01982332
) Agency No. 9800174004
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On February 6, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) addressing his complaint of unlawful
employment discrimination in violation of Title VII. Appellant alleges
that he was discriminated against on the bases of race (Chinese),
color (yellow), and national origin (Vietnamese) when: (1) his name
was excluded from the nomination list to receive an award for his work
on the MK689 Special Act; (2) in August 1997, he received a Level 4
�exceeds fully successful� performance appraisal rating for the period
covering August 1, 1996 through July 31, 1997, whereas the previous year,
he received a Level 5 �outstanding� rating; and (3) sometime in 1995,
his first level supervisor tried to get rid of him by placing him on
the �unfunded� list, ordering him to perform manual labor, and forcing
him to find work off station, which resulted in a one year detail to
the Naval Research Laboratory.
In its FAD, the agency dismissed: allegation (1) for failure to state a
claim pursuant to 29 C.F.R. � 1604.107(a); and allegations (2) and (3)
for failure to initiate timely contact with an EEO counselor pursuant
to 29 C.F.R. � 1604.107(b).
Allegation 1
EEOC Regulation 29 C.F.R. � 1614.107(e) provides for the dismissal of a
complaint, or portions thereof, when the issues raised therein are moot.
To determine whether the issues raised in appellant's complaint are moot,
the fact-finder must ascertain whether (1) it can be said with assurance
that there is no reasonable expectation that the alleged violation will
recur; and (2) interim relief or events have completely and irrevocably
eradicated the effects of the alleged discrimination. See County of Los
Angeles v. Davis, 440 U.S. 625, 631 (1979). When such circumstances
exist, no relief is available and no need for a determination of the
rights of the parties is presented.<1>
The record establishes that when appellant became aware that his name
had been omitted from the MK689 Special Act award nomination list, he
complained to management. Management investigated and having determined
that appellant made a significant contribution to the MK689 Special
Act, appellant was nominated and received a $500.00 award for his work
in October 1997. Management stated that this $500.00 represented the
same amount that appellant's coworkers had received in September 1997,
and that everyone who received an award for work on the MK689 Special
Act, received the same award amount. Consequently, we find that the
agency rectified the alleged harm concerning the MK689 Special Act award
nomination list and that complainant is no longer aggrieved. Therefore,
while we affirm the agency's dismissal of allegation (1), we note that
it is properly dismissed pursuant to 29 C.F.R. � 1614.107(e).
Allegations 2 and 3
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of an EEO counselor
within forty-five (45) days of the date of the matter alleged to be
discriminatory, or, in the case of a personnel action, within forty-five
(45) days of the effective date of the action. The Commission has adopted
a "reasonable suspicion" standard (as opposed to a "supportive facts"
standard) to determine when the forty-five (45) day limitation period is
triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988).
Thus, the time limitation is not triggered until a complainant reasonably
suspects discrimination, but before all the facts that support a charge
of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the counselor
within the time limits, or for other reasons considered sufficient
by the agency or the Commission. Where, as here, there is an issue of
timeliness, "[a]n agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness." Guy,
v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994)
(quoting Williams v. Department of Defense, EEOC Request No. 05920506
(August 25, 1992)). In addition, in Ericson v. Department of the Army,
EEOC Request No. 05920623 (January 14, 1993), the Commission stated that
the agency has the burden of providing evidence and/or proof to support
its final decisions. See Gens v. Department of Defense, EEOC Request
No. 05910837 (January 31, 1992).
The record establishes that appellant first contacted an EEO counselor on
October 6, 1997 to discuss his concern that he did not receive an award
for his work on the MK689 project. Appellant did not initiate formal
counseling at that time because he decided to attempt to resolve the
problem without EEO involvement. No notice of Rights and Responsibilities
was issued. On November 10, 1997, appellant informed the EEO counselor to
whom he had previously spoken that he had received the award in question.
On November 18, 1997, appellant scheduled a counseling session and was
issued a notice of Rights and Responsibilities. The agency noted that
when appellant contacted the first EEO counselor on October 6, 1997,
the only issue raised was the award for the MK689 project. Thus in
regard to allegations (2) and (3), the agency determined that the date
of initial contact with an EEO counselor was November 18, 1997.
In regard to allegation (2), appellant received his 1997 performance
appraisal on August 29, 1997. In order to comply with the applicable time
limitations contained in 29 C.F.R. � 1614.105(1), appellant should have
contacted an EEO counselor regarding his performance appraisal by October
13, 1997. Furthermore, allegation (3) occurred in 1995 and appellant did
not bring it to the attention of an EEO counselor until November 1997.
On appeal, appellant contends that all three of his allegations should
be accepted as a continuing violation.
The Commission has held that the time requirements for initiating EEO
counseling can be waived as to certain allegations within a complaint
when the complainant alleges a continuing violation; that is, a series of
related discriminatory acts, one of which falls within the time period
for contacting an EEO Counselor. See McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. Postal
Service, EEOC Appeal No. 01890412 (April 6, 1989). In the instant case,
having accepted the agency's determination that appellant's initial
contact with an EEO counselor occurred on November 18, 1997, we find that
neither allegation (2) nor allegation (3) falls within the time period
for contacting an EEO Counselor.<2> Therefore, the agency properly
dismissed allegations (2) and (3) pursuant to 29 C.F.R. � 1614.107(b).
Accordingly, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. � 1614.604.
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT
IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT
HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(C.F.R.).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
March 12, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The Commission has held that an agency must address the issue of
compensatory damages when a complainant shows objective evidence that he
has incurred compensatory damages, and that the damages are related to
the alleged discrimination. Jackson v. United Staes Postal Service, EEOC
Appeal No. 01923399 (November 12, 1992), request to reopen denied, EEOC
Request No. 05930306 (February 1, 1993). Should a complainant ultimately
prevail, the possibility of an award of compensatory damages exists.
See Glover v. United States Postal Service, EEOC Appeal No. 01930696
(December 9, 1993). We note that in this claim, appellant has not
requested compensatory damages.
2 We note that it is not necessary to examine the timeliness of allegation
(1) as that allegation was properly dismissed.